Why is the United States building a border fence and raiding workplaces? How has it come to harbor 12 million people without legal status? This article proposes that we can understand these phenomena as the product of a legal culture which privileges the desires and perspective of the demos over nearly every other value. Accordingly, government is structured so that it approaches immigration in a way that flatters this democratic epistemology, instead of a judicious, effective and humane policy perspective. Put into practice, the current emphasis means that immigration regulation is an exercise in symbolic action. We see the effects of this majoritarian architecture in the construction of the border fence, which the Congressional Research Service has acknowledged does little to control illegal immigration, but succeeds in increasing the rate of migrant border deaths. Nevertheless, the fence prevails as policy because it confirms and assuages the polity's fear of racial invasion; that it does little to prevent undocumented migration is irrelevant. The article also considers how the United States engages in these kinds of actions and still maintains its outward image as liberty enlightening the world. Part II illustrates how the adoption of antidiscrimination provisions in immigration law were intended to preserve this enlightenment image, but had the practical effect of facilitating the employment of unauthorized migrants, leading the polity to demand visible action, which in turn produced stigmatizing employer raids. Finally, the article explores the way in which courts maintain the narrative of the United States as an open-armed refuge, while managing the radical potential of the Fourteenth Amendment's birthright citizenship provision. All these political and legal forces combine, then, to produce the 12 million stigmatized illegal migrants who live in democracy's shadow.

The October 2007 preliminary injunction issued against the Department of Homeland Security's "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" provides a good case study of the role judicial review can play in agency rulemaking. In AFL-CIO v. Chertoff the U.S. District Court for the Northern District of California issued a preliminary injunction against enforcement of DHS's rule based on three objections: the rule was ultra vires; DHS gave no reasoned analysis for the rule change; and DHS was obligated to conduct a regulatory flexibility analysis pursuant to the Regulatory Flexibility Act. The court erroneously rejected arguments that the rule contravened its underlying statute, the Immigration Reform and Control Act. The court's order put no pressure on DHS to revise the rule's crucial substance. As a result, a "bad" procedural law will soon be in effect. Had the court come to the opposite conclusion regarding whether the rule contravened its statute, DHS would probably have revised the rule to accomplish its goals while causing far less injury to immigrants, workers, and small businesses. This case thus illustrates how more critical judicial review is important to the formulation of good administrative agency rules.

"Illegals do NOT pay taxes." As a law professor researching and writing about undocumented immigrants and their tax issues I see this comment in my email inbox and hear it during outreach efforts routinely. Every time I hear or read this or a similar comment, my whole body cringes. This short statement truly embodies the exploitation of the immigration debate. While this statement is often delivered from mainstream individuals, its origin can be traced to extremist rhetoric. Anti-immigrant and anti-Latino extremists have used outright bigotry to frame the immigration debate to advance their own supremacist agenda. By positioning themselves as legitimate advocates against illegal immigration in America these groups have broadened their base and mainstreamed their message. These groups "are frequently quoted in the media, have been called to testify before Congress, and often hold meetings with lawmakers and other public figures." As a result, in many American communities immigrants live in fear and suffer a toxic environment in which hateful rhetoric targeting immigrants has become an acceptable part of daily news and discourse. This Essay is an answer to this insidious vilification and arrant racism. This Essay will debunk the short, but maladroit statement that "illegals do NOT pay taxes." First, calling a group of people "illegals" is hateful, "racially loaded, imprecise, and pejorative." Scholars, and children, understand that language and discourse can contribute to vile acts including crime, abuse and other social problems. Historical and current atrocities including the Holocaust, Darfur and the murder of Matthew Shepard are horrific examples of this intolerable truth. The term "illegals" is patently dehumanizing and inappropriate terminology, and its persistent use by extremists, as well as mainstream media and the general population, must stop now. Second, as a low-income taxpayer and human rights advocate, I understand that pervasive misunderstanding regarding undocumented immigrants evinces the frustration and fear that many Americans feel about the challenging state of the U.S. and global economies. Restrictionists feed this frustration and fear with inflammatory propaganda about undocumented immigrants and our tax systems. Because of overwhelming complexity and lack of transparency in this system it is easy to misrepresent and distort the facts. As a result, some Americans believe the absolutely irrational and self-delusional assertion that undocumented immigrants do not pay any taxes. This gross falsehood is counterproductive for the speaker, the subject, and the U.S. and global economies. Finally, as a tax professor I am charged with teaching tax and these comments broadcast loudly and boldly how misinformed Americans are about our tax systems. The well documented facts evidence that undocumented immigrants have paid hundreds of billions of dollars in American taxes to date. In most cases undocumented immigrants pay more in tax each year than similarly situated U.S. citizens. This additional tax, which is first exposed and labeled here as "the undocumented immigrant tax," is the subject of this Essay. This Essay will describe the depth and breadth of undocumented immigrants as a resource for tax payments made to government coffers across the country. The depth and breadth will be evinced by describing the myriad of different federal, state and local taxes undocumented immigrants are subject to and pay. But most notably this Essay will verify that not only do undocumented immigrants pay the same taxes that U.S. citizens and documented residents pay, but in addition they are subject to and pay what I am describing as "the undocumented immigrant tax." The undocumented immigrant tax is effectively an additional tax burden, a surtax or tariff on undocumented immigrants and their families. As a result, not only do undocumented immigrants pay taxes, but they bear a greater tax burden than similarly situated U.S. citizens and documented residents.